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CHILD WITNESS:
CAPACITY TO TESTIFYAND
ACCOMMODATIONS
R. Greg [email protected]
Rule 601 – Rule of Inclusion
• 601 (a) Every person is competent to be a witness except:
• 601(b) 1) Incapable of expressing himself or herselfconcerning
the matter as to be understood; or
2) Incapable of understanding the duty of witness to tell the
truth.
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“By far, the vast majority of cases in which a child witness’
competency has been addressed have resulted in the finding,
pursuant to an informal voir dire examination of the child before
the trial judge, that the child was competent to testify.”
State v. Fearing, 315 N.C. 167 (1985).
State v. Eason, 328 N.C. 409 (1991).
“There is no age below which one is incompetent as a matter of
law to testify.”
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No bright line test. So how young is too young?
• State v. Reeves, 337 N.C. 700.- Two and a half years old
at
time of incident and five years old at trial.
- Found competent to testify.
• State v. Ward, 118 N.C. App. 389.
- Two years old at time of incident and 4 years old at
trial.
- Found competent to testify.
Rule 104(a) Preliminary question
• Qualification of a person to be a witness shall be determined
by the court.
• In making its determination the court is not bound by the
rules of evidence except those with respect to privilege.
• Competency issue may be raised by the parties or the
circumstances (i.e, court’s own motion). State v. Eason, 328 N.C.
409 (1991).
• Parties may not stipulate as to competency. State v. Fearing,
315 N.C. 167 (1985).
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Rule 104(c) – Hearing conducted out of the hearing of jury when
interest of justice require.
Other witnesses may be called (ex. – parents, teachers, others),
but not necessary.
Formal findings of fact not required. State v. Rael, 321 N.C.
533 (1988). But remember to protect the record.
Best Practice: Voir dire on competency.
Trial Court’s Task
• A trial court’s competency determination rests in the sound
discretion of the trial judge in the light of his/her examination
and observation of the particular [individual]. In re T.L.H., 368
N.C. 101 (2015) quoting State v. Turner, 268 N.C. 225 (1966).
• In exercising her discretion, the trial court must rely on her
personal observations of the child's demeanor and responses to
inquiry on voir dire examination. State v. Fearing, 315 N.C.
167.
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Witness found competent despite “that certain of her answers
during the voir dire were as vague, even nonsensical, as one might
expect of a little child of such tender years.” State v. Robinson,
310 N.C. 530 (1984).
Witness found competent despite “that certain of the child’s
answers during voir dire were somewhat vague and
self-contradictory, just as might be expected of a little child of
such tender years.” State v. McNeely, 314 N.C. 451 (1985).
Court can consider the child’s age and resulting
expectations/limitations
Child Witness Accommodations
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N.C.G.S. § 15A-1225.1 – Remote Testimony
• Authorized when court determines: (15A-1225.1(b))
• 1) Child witness would suffer serious emotional distress, not
by the open forum in general, but by testifying in Defendant’s
presence, and
• 2) Child’s ability to communicate with the trier of fact would
be impaired.
• Evidentiary hearings required (c). Findings and conclusions
required (d).
State v. Jackson, 216 N.C. App. 238 (2011), disc. rec. denied,
365 N.C. 547 (2012), cert. denied, 133 S.Ct. 164 (2012). –
Post-Crawford. Case approved use of CCTV under 15A-1225.1.
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AOC Closed Circuit Witness System
• AOC has 6 systems in 3 separate locations:• AOC-Raleigh – 3
systems
AOC-McDowell – 2 systemsAOC-Mecklenburg – 1 system
• Call HelpDesk ((919)890-2407) to request unitNeed a court
order;AOC requests at least 2 week notice;AOC will install system
onsite.
• Andrew Breedlove (919)890-1351 Jason Dallin (919)890-1366
Leading questions on direct examination
• “Leading questions are necessary and permitted on direct
examination when a witness has difficulty in understanding the
question because of immaturity, age, infirmity or ignorance or when
the inquiry is into a subject of delicate nature such as sexual
matters.” State v. Higginbottom, 312 N.C. 760 (1985).
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Allow child to sit on caregiver’s lap during testimony. State v.
Reeves, 337 N.C. 700 (1994).
Use of anatomical dolls. State v. Fletcher, 322 N.C.415
(1988).
Child’s own terms for body parts. State v. Watkins, 318 N.C. 498
(1986).
• Allow recess if child becomes emotional or recall the child at
a later time. State v. McNeely, 314 N.C. 451 (1985).
• “We hold that a trial judge may question a witness for the
purpose of clarifying testimony and promoting a better
understanding of it.” State v. Locklear, 349 N.C. 118 (1998).
• Proceed cautiously – State v. McEachern, 283 N.C. 57
(1973).
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Exceptions to Sequestration
• Rule 615 – This rule does not authorize exclusion of (4) a
person whose presence is determined by the court to be in the
interest of justice.
• 15A-1225: Parent/guardian may be present when minor child is
testifying.
• Social Worker and JCC allowed to stay in court during child’s
testimony. State v. Stanley, 310 N.C. 353 (1984).
• Child’s therapist allowed to stay in courtroom. State v.
Godley, 234 N.C. App. 562 (2014).
N.C.G.S. §15-166 – Exclusion of Bystanders
• In trial for rape or sex offense (or attempts), trial judge
may, during the taking of the testimony of the prosecutrix, exclude
from the courtroom all persons except officers of the court, the
defendant and those engaged in the trial of the case.
• Cannot be imposed summarily.
• Trial judge must apply the Waller 4-part test. State v.
Godley, 234 N.C. App. 562 (2014).
